SUPREME COURT

Taranaki Daily News, Volume LIV, Issue 217, 12 March 1912, Page 7

SUPREME COURT

YESTERDAY'S SITTING. ALLEGED INDECENT ASSAULT. The Supreme Court sessions at New Plymouth were resumed yesterday mornMr. Justice Sim presiding. Charles Blundell Lumsden, junr., who failed to surrender to bail at the criminal sessions last week, and whq was arrested ;it Fordell last Friday night, appeared in answer to a charge of indecent assault at Tataraimaka. Accused, pleaded not guilty, and, speaking on his behalf, Mr. R. Spence said that he had been informed by him that the reason of his non-appearance last week was that he did not understand the exact date on which the Court was to sit. No date Was mentioned on his recognisances, it being merely stated that the sessions were convened for March, and when Lumsden found that the Court was sitting he wired to the hotelkeeper at Okato asking him to forward money for his expenses to New Plymouth. While recognising that Lumsden's story was no excuse, Mr. Spence said it was some palliation for the apparent offence of failing to surrender. As the jury had been discharged last week and the criminal sessions were over accused was remanded to stand trial at the next sessions of the Court aft New Plymouth. His Honor remarked that it was possible that Lumsden was, in his excuse, telling the truth, and accordingly granted bail in one surety of £SO and one surety of £IOO.

CLAIM FOR SPECIFIC PERFORMANCE Hearing was continued in the case ' \ which M. C. Robison proceeded aga: • J. Sanson for specific performance cf an agreement to exchange farm lands. John C. Nicholson, solicitor, practibing at New Plymouth, who drew up the draft clause of the deed of sale, said he first heard of the grassing clause very shortly after the signing ttf the agreement, the" matter being mentioned the same day by Robison. Robison said to witness: "By Jove! I forgot to tell you that there, is a provision in Bayly's mortgage requiring 400 acres to be laid down in grass per year." Witness rej plied: "Does Sanson know about it ?" The reply was, "Yes; he knows all about it," and Robison added that Sanson did not mind about it, as he anticipated laying down a bigger area than that each year on his own account. Witness advised his client that if Sanson knew of the condition, the omission of reference to it in the agreement was not fatal. At a subsequent discussion no reference was made by Eobison to obtaining a concession of the clause' from -Bayly. . Some time later, upon Sanson refusing to complete the agreement, witness informed Robison that in the event of a civil action the ground of defence would in his opinion be the non-inclusion of the grassing clause in the deed. Witness advised his client that the fact that the matter had previously been mentioned to San«>n would have to be proved orally, and if the defendant denied it there might be difficulty in proving it. Witness then I advised him to see Bayly and get him to waive the clause.

Mr. Spence: Why did you not ihimediately go back to Mr. Fookes' office and enter a memorandum of agreement in regard to the omission of the grassin» clause? °

Witness: Because I was satisfied .from ! my client that Sanson knew abou't it and considered it of no importance. To Mr. Spence, witness subsequently admitted it was not the most prudent thing that could be adopted, but'the agreement was sufficiently legal binding without the grassing covenant. Mr. Spence: Did you ttellMr. Fookes (Sanson's solicitor) that Sanson knew all about the covenant?

f Witness replied that he could not remember, and subsequently he said he thought Mr. Fookes'- memory was incorrect when he alleged that in answer to the grassing clause he (witness) had replied that it would be all right, as he -would try to arrange with Bayly to waive the clause.

Mr. Spence: When I'communicated, with you by telephone on November 3 did you allege or suggest that Sanson knew of the clause t~ -

Witness: I don't know. I don't think I did. In that particular conversation you were doing all the talking, and I was taking care to say very little. Thomas C. Fookes, solicitor, who up to a certain point acted for the- defendant in the deal, gave evidence surrounding the signing of the agreement. To Mr. Spence: Not a word was mentioned to him of the existence of the grassing covenant. \

To Mr. Spence: Mr. Nicholson made no reference, to Mr. Sanson's knowledge, of the grassing clause. Witness' first knowledge of the clause was a result of a search of the title.

To Mr. Bell: Mr. Sanson had expressed himself highly pleased with the island. Sanson gave him no. impression whatever that lie was being hurried into the exchange, or that he was being pressed into it against his will. DEFENDANT'S EVIDENCE. The defendant (Henry Sanson, jun.) next stepped into the box, and said he had worked at the trade of a saddler until he was 35 years of age, when be took up farming pursuits, in which he lias been engaged ever since. Detailing liis financial position, he said that his farm was heavily mortgaged, and he owed his bank £3500, which was the limit allowed him. Referring to the transaction under review, defendant recalled that he had approached Hodge and asked him if .he knew of any good iamb-fattening country for sale. Subsequently Hodge called upon defendant, and greeted him with the mark, "Hullo! I have sold your rarm." Defendant expressed surprise, and then Hodge said that he had not yet disposed of the property, but he had particulars of a likely I property in the shape of Matakana Island. Subsequently Hodge called at the house, accompanied by F. Kemp, the latter giving witness a glowing description of the property, with the re" alt that all three immediately left to inspect the island. Kemp also mentioned that he and his brother had wished*to buy the top part of the place, but Robison would not sell. Kemp said that Robison was a poor farmer, and could not manage Matakana well. In the course of conversation witness ,defendant)) asked Kemp: "Is that the island which four years ago was offered in the Auckland papers for 10s an acre?" Kemp replied in the afiirnnitivc, stating that they had paid 12s (id for it, nnu added that anything that Robison said could be taken as the truth. Describing his first visit to the island, Sanson said the grassed portion appeared to look well. As regards the sheep, Robison had told him that there were about 1000 ewes, with a few wethers among them. The raupo swamp was said to contain kauri gum. Witness was positive that no mention of the grassing clause was made in his hearing, or prior to his signing the agreement. Reverting to the gum lands, witness said that Robison told him that the Austrians were desirous of obtaining the gum-digging rights of the swamp, as it contained thousands of pounds' worth of gum. Upon witness expressing a fear that the swamps were undrainable, Robison said that Bayly had obtained levels which showed that there was ample fall for drainage purposes, and further stated that the sandy land had been tested by Bayly and would San * Qn

that oil one occasion he had told Hodge that he did not like the island, as it would require too much money for him to find to work it. It would be necessary to find £SOOO or £6OOO. Hodge then offered to endeavor to raise this amount. In fact he (Hodge) was pretty well sure that Mr. Curtis would provide £IO,OOO. Witness then wont on to deny ever having had a conversation with A. Kemp, in which he was supposed to' have expressed satisfaction with the place and asked.him to keep Griffin Bros, out of the way. Witness added that subsequent to the drawing-up of the agreement he had remarked to Hodge that he was afraid he had "fallen in." Hodge then said, "If you want to get out of it there is an improvement clause of 400 acres which is not included in the agreement." At witness' request Hodge wrote down some instructions (produced) to search tha mortgage for the grassing clause, and he (Sanson) would find out what he meant.

"DON'T LET THE KEMPS KNOW."

Witness added that Hodge then enjoined him as follows: "Don't let the •Kemps know about this, or there will be a devil of a row. I believe they would kill me." After giving further evidence, defendant said that had he known of the grassing covenant he would never have agreed to purchase. On the occasion of his second visit to the island the number of sheep was corrected, Robison stating that instead of 1000 here were only 750 on the property. One of the reasons that influenced witness in his decision to buy was Itobison's statement that in three or four years, with a few improvements to the place, he Would' be able to sell at probably twice as much as he paid for it. - To Mr. Bell: The land he had been aecustomed to was always heavy, and when he first saw Matakana he remarked! "This is the land I have been looking-for for thirty years past." He was pleased with the grass, but not with the crops. It was useless to buy the property unless he, laid down the land so as to carry a, large number of stock.

Mr. Bell then asked Sanson what difference it could make if he wag laying down a big area (say 1000 acres) each year if this clause compelling him to bow 400 acres was included in the agreement.

Defendant replied that had he known it, he was, in signing the deed of purchase, virtually making himseli responsible for £I2OO worth of improvements the first year, to his predecessor's neglect. Mr. Bell: It is said that on the island you stated that you did not regard the grassing clause as of any importance. Plaintiff: That is not so.

Mr. Bell: Well, assuming you had made that statement would the clause have been, of importance to you? Plaintiff replied that in effect he did' not suppose it would have mattered whether the clause was in the agreement or not.

Mr. Bell: Yet you tell us that this particular clause is one of your reasons for wanting to- rescind.

Defendant was cross-examined at length by Mr. Bell, and the Court rose at 5.5 p.m. The case will bs continued at 10 a.m. to-day. It is expected that the taking of evidence will lie concluded today, but counsel's addresses—those of Mr. Bell and Mr. Skerrett—will be delivered ,before Mr. Justice Sim at Wellington as soon after the conclusion of the New Plymouth sessions as possible.